CONSTITUTIONAL COMMISSION REPORT.
IN the proposed new constitution for St Lucia members of parliament who cross the floor, change political allegiance, fail to perform constituency duties or breach ethical standards of parliament will be subject to recall.
The recommendation is made in the report of the Constitutional Reform Commission, Chapter 5 which we continue serializing today:
Against the backdrop of tremendous concern expressed by Saint Lucians about the behaviour of elected Parliamentarians, lack of accountability between elections, and general limited contact between parliamentary representatives and constituents, the Commission considered the proposals to make Parliamentary representatives more responsive to the people. We have already noted elsewhere in the report the changes that we envisaged for a reformed Parliament which in the Commission’s opinion would create a larger space for such representation. However, the Commission felt that this in itself was inadequate to correct the deficiencies in the current system of delegated representation. Therefore we considered a number of mechanisms that have been utilised in various jurisdictions to create a closer relationship between constituents and the elected members of parliament. In our view the recall mechanism offered a best practice which could easily be adopted without seriously undermining the working of the system.
Simply put, a recall mechanism is designed to trigger a recall election of an elected official who in the view of the electorate has failed to perform or has violated a regulation. Globally, it is one of the best means of institutionalising a form of direct democracy, in which the politically relevant citizens are able to cut short the term of an elected representative through a public vote. There are several modalities but as a general rule, using the recall mechanism requires the affected citizens asking for a recall to sign a petition. Only when a sufficient number of the electorate signs the petition, would a recall process be initiated. This involves a special election (usually a referendum) to determine whether the official should be removed from office.
The Commission accepted that as a tool designed to effect greater accountability of elected officials the recall mechanism has tremendous value. In addition, the Commission believes it would deepen the democratic process in a representative democracy with little opportunity for direct democracy. Firstly, the Commission accepts the view that sovereignty should truly rest with the people. The Commission thus reasoned that as much power as possible should reside with the people. While the Commission noted that the citizenry/electorate entrust power to legislators and members of the executive, Commissioners felt that if that trust was broken or abused, there should be a mechanism to recall from office the offending politician. In this way, the Commission reasoned that elected officials would not only behave in a more ethical manner but would also be forced to perform even more effectively than at present. Secondly, the Commission considered that as elections generally focus on an entire party, the lack of a recall mechanism may allow an offending official to escape judgement when the public was desirous of returning a party to Government. As such, regardless of their incompetent and unethical conduct, such an official may escape judgement. The recall mechanism in the estimation of the Commission therefore, is designed to correct this, by isolating the official from the party and to also facilitate quicker action. Ultimately therefore, the Commission felt that in the period between elections, elected officials facing the prospect of a recall, would moderate their behaviour.
In arriving at its decision the Commission weighed the potential for disruption to the system and abuse by constituents. In evaluating the merits of the system, we accepted that a recall mechanism offered the potential for abuse. This was potentially dangerous, especially in elections which produced very close constituency results. Indeed marginal victories in constituencies are typical, not only in Saint Lucia but throughout the Caribbean where candidates often lose the constituency race by small margins. The Commission was also mindful of the fact that electorally the two main political parties are very close in terms of national support. In the past, Governments have been known to hold only a one seat advantage in the national Parliament. Under such circumstances the recall mechanism would be extremely attractive to the opposition and their supporters and powerful private interests groups adverse to the Government or the Member of Parliament. These groups could theoretically manipulate the system in order to effect a change of government at any time. This, the Commission reasoned would be unfair and potentially dangerous as it would certainly present a picture of instability which a small dependent economy could ill afford.
To be sure, the Commission was mindful of the fact that while we were charged with offering solutions to deepen the democratic environment, we could not allow democracy to be undermined by the constant fear of local recall initiatives. Further, we acknowledged the vulnerability of elected officials, and in our estimation felt that in order to prevent deliberate mischief on the part of political opponents and highly partisan electors, the model of recall would have to have inbuilt a safeguard against the arbitrariness or abuse. In the perspective of the Commission therefore, a recall should only be initiated on very limited and specific grounds and should be subject to a time line. The commission was therefore of the view that the following conditions must be satisfied:
Non-performance as it relates to constituency duties and which could only be initiated after the MP has served at least half of his parliamentary term; or Breach of a law, rule or ethical standard established by Parliament.
This of course is subject to our other recommendation elsewhere that an automatic recall should commence in the case of a Member of Parliament crossing the floor which would lead to an automatic vacating of the parliamentary seat.
In reviewing the various modalities used globally, the Commission was intrigued by the model which is used in Venezuela and which triggered the recall referendum of populist political leader and President Hugo Chavez. The specific regulation in Venezuela provides for the recall of an elected official, only if the elected official had served at least half of the term of office. Secondly, in order to trigger the recall mechanism, at least twenty five percent (25%) of the registered voters in the affected constituency must petition for a calling of a referendum to revoke that official’s term of office. If voters in numbers equal to or greater than twenty-five percent (25%) of the eligible voters,who had, in the previous elections for the official, vote for recall, the official’s mandate is revoked and a bye-election must take place to fill the vacancy with immediate effect.52
The Commission agreed that the twenty-five percent (25%) threshold utilised in Venezuela was reasonable and should be adopted in Saint Lucia. Additionally, in cases of recall petitions, the Electoral and Constituency Boundaries Commission will be required to certify that the names and signatures on the petition are bona fides.
The Commission also felt that a sufficiently high ceiling should be placed on the recall election of sixty percent (60%) of the eligible electors in the relevant constituency. While there was general consensus on the right of recall, a minority of Commissioners was of the view that only persons who had voted in the previous election should have the right to participate in the recall election.
The majority disagree with this viewpoint, maintaining that this would be difficult to administer by an Electoral and Constituency Boundaries Commission starved of resources and that in any event, every eligible voter had the legitimate right to vote in any election.
In evaluating best practices globally, the Commission also noted the need to ensure that in the event of a successful recall, the bye-elections triggered by this action would not remove the right of the recalled Member to contest the bye-election.
Recommendations
With respect to right of recall, the Commission recommends the following:
(86) The right of recall should be provided for in a reformed constitution.
(87) A recall should be automatically triggered if a Member of Parliament who was elected on a party ticket crosses the floor or changes his/her political allegiance.
(88) A recall should also be initiated in cases where: there is non-performance as it relates to constituency duties and which can only be initiated after the MP has served at least half of his parliamentary term; or there is a breach of any law, rule or ethical standard established by
Parliament;
(89) In either of these two (2) cases mentioned above, at least 25% of eligible voters must sign a petition requesting a recall.
(90) In cases of recall petitions, the Electoral and Constituency Boundaries Commission will be required to certify that the names and signatures on the petition are bona fides.
(91) In the recall referendum, a Member of Parliament is recalled if at least 60% of eligible voters in the relevant constituency vote in favour of the proposition.
(92) The recalled Member has the right to contest the bye-election.